Jewish World Review Jan. 15, 2002 / 2 Shevat, 5762

Drs. Michael A. Glueck & Robert J. Cihak

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Score one for the
value of human life -- THERE is in logic an error known as post hoc ergo propter hoc, literally, "after this, therefore because of this." The fallacy lies in concluding that an event is automatically caused by a designated prior event, without demonstrating clear causality.

It's an error we're about to commit deliberately and joyously. We've written of late about a French court that recently enunciated a legal concept that can only be described as "wrongful birth." After our first article appeared, the French Parliament quickly abrogated the court's decision. Our direct impact on the decision? None that we can discern. But that first column drew powerful responses both in America and in Europe, comments of the "Thank you for saying it" variety. And insofar as these represented the kind of outrage and determination that good people can bring to bear on erring governments - we're darned proud to have been a part.

Here's the story of how the nation that once gave the world the "Declaration of the Rights of Man and Citizen" decided that people could sue for having been born, or for letting others be born, and how they changed their minds.

Early this year, Reuters reported that French obstetricians were "refusing to carry out ultrasound scans on pregnant women after a court found they could be liable should a disabled child be born." The problem arose because lawyers claiming to represent "a child with the genetic disorder Down's Syndrome successfully sued doctors because the condition had not been detected using ultrasound, and an abortion carried out."

No ultrasound examination or other any diagnostic test is 100 percent accurate. In effect, the court held that anything less than eternal perfection constituted grounds for legal action. So the doctors, justifiably fearful of more lawsuits, started practicing a novel form of "defensive medicine." Instead of ordering too many tests and procedures to guard against future legal action, they refused to act at all.

Our initial reaction, as physicians and as human beings: This is what happens when courts become independent arbiters of morality, and the manipulative logic of some lawyers takes over. At one level, the case was prima-facie absurd. In effect, the lawyers claimed that the baby wanted to be killed in the womb. Of course, the baby was just born and probably hadn't been consulted. Just as well. Newborns have more important things to do.

Presumably, as is the case in this country, the parents or mother decided to sue. What was their rationale? That they were unwilling to be burdened by an imperfect child? That they'd changed their minds (sorry, not the child we wanted) about parenthood? That they just wanted the cash?

But the issue here - as the French Parliament figured out - clearly goes beyond the surface absurdity, ugliness, and greed. It strikes at the very notion of the legal protection of life, as it relates to medical practice. In a "normal" malpractice lawsuit, damages awarded to the complaining party would be defined and limited by the harm done. In this case, however, the basic complaint is that, "life itself is a damage." Or to put it even more bluntly the existence of some persons constitutes such a damage to other persons that compensation must be paid.

Such cases attract media attention. They have in this country. Several years ago, for example, a disabled young man sued his parents for letting him be born. These cases are reported often on lists of the year's wackiest lawsuits because they conflict so strongly with our everyday experience and common sense. Sure, life has its ups and downs, but the mystery of life and the sense that life is worth living invokes our curiosity and sustains us over time. To declare someone else's life "not worth living" is, at best, a horrendous usurpation of another's rights. To enshrine that principle in law is far worse.

We've seen it before. The Nazis decreed the lives of any number of groups of human beings from Jews and Slavs to homosexuals and the retarded not worthy of existence, let alone protection. Communist butchers did the same with entire social and economic classes. They too had the "law" on their side.

Although initially you might think this a leap, we suggest that the link between the jihadists and the wrongful birth lawyers is a deep one. Both regard the lives of some as an intolerable affront to the lives of others, an affront that goes far beyond this world's "normal" human struggles. Golda Meir once remarked that Palestinians seemed to hate the Jews more than they loved their children. An ugly comment that most Palestinians and Arabs would no doubt vehemently reject. And yet, the young suicide bombers their children keep coming. And the cheering goes on.

So what do we have here? In essence, a continuum a linkage between a courtroom in civilized France and the deeds of the Nazis, the totalitarians, the jihadists. It may not seem obvious, this connection between "wrongful birth" and mass murder, but it's there. It's there when the law (religious as well as secular) perverts itself to the point where not killing becomes a crime.

Now for the good news.

On January 11th, according to the Guardian: "The French parliament approved a bill yesterday aimed at curbing the ruling by France's highest court which gave severely handicapped children the legal right to have never been born. The bill, which begins, 'No one may claim to have been prejudiced by the simple fact of their birth,' was adopted by the National Assembly."

Why the reversal? Political pressure, no doubt. Some of it professionally motivated: the medical people. Some religiously and philosophically motivated. But we suspect that, in the end, an ineluctable truth won out. Life has value. Always. No matter what happened before birth, or what comes after.

Michael Arnold Glueck, M.D., of Newport Beach, Calif., writes on medical, legal, disability and mental health reform. Robert J. Cihak, M.D., of Aberdeen, Wash., is president of the Association of American Physicians and Surgeons. Both JWR contributors are Harvard trained diagnostic radiologists who write numerous commentaries and articles for newspapers, newsletters, magazines and journals nationally and internationally. Comment by clicking here.


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© 2001, Michael A. Glueck & Robert J. Cihak